NO. 88-341

TN THE SUPREME COURT OF THE STATE OF MONTANA
1988

STATE OF MONTANA,
PI-aintif f and Respondent,-vsTAR SCOTT STEVlART,
Defendant and Appellant.

APPEAL FROM: DistrictCourtof theEighthJudicialDistrict, In and fortheCountyof Cascade, The HonorableThomasMcKittrick, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
John Keith, GreatFal-ls, Montana
For Respondent:
Hon. Mike Greely, AttorneyGeneral, Helena, Montana Joe R. Roberts, Asst. Atty. General, Helena PatrickL. Paul, CountyAttorney, GreatFalls, Montana

F.-. Rrant S. T,iqht, DeputvCountvAttorney, GreatFalls cD 0 

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Submittedon Briefs: Dec. 2, 1988
Decided: December 28, 1988

ClerkMr. Justice JohnConwayHarrison delivered the Opinion of the Court.

Appellant, Tab Scott Stewart,appealshis conviction of burglary and aggravated burglary, both felonies, and misdemeanor theft, in the Eighth Judicial District, Cascade County,Montana. Appellant's only claim on appeal is thathe
was denied effective assistance of counsel. We affirm the conviction. On September 11, 1987,PatMaag reported a burglary at his home in Great Falls, Montana. Mr. Maag occupied the basement apartment in a large, two story building. Various miscellaneous items were taken, including a gold-tone Timex watch. Mr. Maag did not see anyone enter his apartment. However, Brian Collins, a neighbor, saw the appellant in the alley behind Mr. Maag's residence on the previous night. Prior to the burglary, the appellant had moved from the apartment complex hecause he had problemswith the landlord. Appellant was also charged in a second, unrelated crime. On October 1, 1987,at approximately 2:30 a.m., Mary Skinner was asleep at home with her six-year-old daughter, Meaghan. She was awakened by someone in her closet. Mrs. Skinner spoke to the person, assuming the person was one of her other children. Startled by her question, the intruder moved toward the bed and grabbed Mrs. Skinner around the throat and began to choke her and strike her face. Mrs. Skinner screamed for her other daughter, Maile, who was asleep in the next room. Meaghan awoke and attempted to flee the room. The defendant grabbed Meaghan around the throat and threw her onto the bed. Meanwhile, Maile telephoned the police from the kitchen. There she confronted the assailant, and told him she had contacted the police. Mrs. Skinner chased the assailant into the living room areawhere shehithimwith awaterbed railing. Finally, the assailant fled the home. When the police arrived, Mrs. Skinner gave them a description of the assailant. She stated he had shortwavy blond hair and wore a gray, fleece-like jacket and blue jeans. Mrs. Skinner thoughtthe assailant seemed familiar to her,but shewasunable to identifyhim. On October 5, 1987, Maile gave Mrs. Skinner a picture of a friend who fit the description of the assailant. The person in the photo was the appellant,Tab Stewart. Appellant was arrested and charged onNovember 

### 4, 1987. After a jury trial on February 

### 24, 1988, the appellantwas found guilty of all charges. Appellant claimshewas denied effective assistance of counsel. We disagree. Much of this appeal focuses on the testimony of Keith Zigan, the appellant's roommate and the State's keywitness. Initially, Mr. Zigan told the police that he had been with the appellant all evening on the night of the Skinner burglary, substantiating the appellant's alibi defense. However, Zigan's testimonv at trial contradictedhis earlier statements. Zigan testified that although he and the appellant had been together for a fewhours on the night of the burglary, they parted company around 9:00 p.m. He also stated that on the morning of October 1, 1987,he saw fresh scratches on the appellant's chest. Zigan testified the appellant told him about the Skinner burglary, and admitted he hit a woman and he may have also hit a child. Zigan also identified a gray jacket as belonging to the appellant which

was similar to the jacket Mrs. Skinner described as being

worn 

### by her assailant. Additionally, Ziganaided the police in the recovery of the stolen watch. He testified thathe saw the appellantgo behind their residence and throw a gold colored watch intothe field. The watch was later recovered by Great Falls police officers and identified by Mr. Maag as belonginq to him. Although appellant alleges a number of errors by trial counsel, only one such allegation merits this Court's discussion. Appellant contends his counsel'sperformancewas deficientbecause he failed to adequately present evidence to impeach the testimony of Keith Ziqan. Zigan testified that, through the kitchen window of their daylight basement apartment, he saw the defendant throw a gold colored watch into a field. Appellant contends Zigan could not have seen the purported incident from that specific window, because stackedwood obstructed theview. Appellant claims counsel's failure to call additional witnesses or present photographs to impeach Zigan's testimony resulted in substantial prejudice. From our review of the record,we see no error. Ineffective assistance of counsel requires specific acts or omissions which prejudice defendant's case and result in the denial of 

### a fair trial. Statev. Grant (Mont. 1985), 704 P.2d 1064, 1065, 42 St.Rep. 1248, 1250. This Court has long recognizedand consistently followed the test adoptedby the United States Supreme Court for determining when ineffective assistanceof counsel has occurred: First, the defendant must show that counsel

### 's performance was deficj-ent

# . This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Stricklandv. Washington (1984),466 1J.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. To show prejudice, a defendant must show that, but for counsel's unprofessionalerrors, there was reasonable probability that the result of the proceeding would have been different. State v. Strandberg (Mont. 1986), 724 P.2d 710, 713, 43 St.Rep. 1591, 1594. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. State
v. Robbins (Mont. 1985), 708 P.2d 227, 232, 42 St.Rep. 1440, 1444,citing Strickland,supra. It will generally be appropriate for a reviewing court to assess counsel's overall performance throughout the case in order to determine whether the "identified acts or omissions" overcome the presumption that a counsel rendered reasonable professional assistance. Since "[tlhere are countless ways to provide effective assistance in any given case,

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# .

# ..unless consideration is given to counsel's overall performance, before and at trial, itwill be "all toc easy for a court, examining counsel's defenseafter ithasproved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.



# ..." (citationsomitted.)
State v. Leavens (Mont. 1986), 723 P.2d 236, 237, 43 St.Rep. 1431, 1433, citing Kimrnelman v. Morrison (1986), 477 U.S. 365, 386, 106 S.Ct. 2574, 2589, 91 L.Ed.2d 305, 326, and Strickland,supra. Appellant's allegation of Ziqan's obstructed view was addressed extensively during trial. It was initially raised in counsel's opening statementand strongly reiterated during closing remarks as one of many inconsistencies in Zigan's testimony. More importantly, counsel sought to impeach Zigan's testimony through the use of a diagram of the apartment which illustrated how the wood pile obstructed Zigan's view of the field. It is notable that even the appellant testified that it is possible to see someone outside the window from inside the apartment.Appellant's alleged error amounts to an attempt to second guess counsel's trial tactics and strategies. Where
no prejudice is shown, we will not question counsel's professional deliberations. State 

### v. Henricks (1983)

## , 206 Mont. 469, 672P.2d 20. Defendant fails to point to any evidence to substantiate his allegation of ineffective assistance of counselorprove his counsel's actionsdeprivedhim of a fair trial. We find no merit in the appellant's contentions. Affirmed.

We concur:



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Justices